The Fall of the Presidential Pardon

In the last throes of the Bush presidency, reporters and citizens alike waited
restlessly for the announcement that many were sure would come: the long list
of pardons for administration officials at risk of prosecution, GOP pols mired
in scandal (hello, Ted Stevens) and white-collar criminals with lucky Bush links.
The list never arrived. The former president issued a mere two commutations
on his last day in office, both to border agents convicted of assaulting a Mexican
drug dealer.

Although all recent presidents have granted few pardons, Bush's rate was exceptionally
low. He tied with his father for the lowest-ever percentage of granted pardons
(conviction reversals) - 9.8 percent - and he granted an astonishingly tiny
number of requested commutations (shortened sentences): 0.012 percent.

Bush's abstinence on the pardon front had some of his friends grumbling (Dick
Cheney complained, poetically, that the president had left Scooter Libby "hanging
in the wind"), but it was a relief to many of his critics. The word "pardon"
conjured up images of Libby, Stevens and GOP Congressman-turned-felon Randy
Cunningham - not the thousands of nonviolent offenders languishing in federal
prisons across the country.

However, although Bush disappointed some guilty crony hopefuls with his meager
list of pardons and commutations, he disappointed a far greater number of long-serving
prisoners with no other hope of release. An ever-growing percentage of the US's
2.3 million prisoners - including more than half of the 200,000 inmates in federal
prison - are drug offenders, many of them charged on vague counts of "conspiracy."
Since parole was abolished on the federal level in 1987, drug prisoners serving
drastic sentences are told to apply for a presidential pardon: It's their only
option.

Take Clarence Aaron, a nonviolent drug prisoner denied clemency by Bush. Aaron
was a 23-year-old college student in 1993 when he was convicted of drug conspiracy,
for introducing two major traffickers and being present during the transaction.
He was handed three federal life sentences - no parole.

Aaron submitted a petition for commutation of sentence in 1999. He waited nine
years for an answer, waking up each morning hoping he might soon be free. Meanwhile,
he was featured on the Frontline documentary Snitch, about the drug war policy
of rewarding informants and severely punishing those whose names they drop,
sometimes regardless of guilt.

"I was advised through my attorney [to request a pardon]," Aaron told
Truthout. "We were very hopeful due to the circumstances surrounding my
case, and the fact that I was a first-time nonviolent offender."

On December 23, 2008, after a Bush-administration-long wait, Aaron received
notice: His petition had been denied. After a year, he may submit a new request
and begin the waiting game anew.

"We believe that the justice system in our country has not served me well
thus far," Aaron said.

With the stingy-pardoning Bush era in the past, many nonviolent lifers see the
advent of the Obama presidency as a ray of hope. His message of change and his
immediate action toward closing the military prison at Guantanamo Bay are optimistic
signs for Danielle Metz, a first-time nonviolent offender serving three life
sentences plus 20 years for cocaine conspiracy.

"In his first week in office he talked about closing down Gitmo,"
Metz told Truthout. "Mr. Obama doesn't like their policies there, so, he's
going to do something to change that. I look at that as something positive for
me. I feel once the president gets around to taking care of everything he has
to for the American people, he'll do what he can for the people who are still
in the US judicial system with lengthy sentences like myself."

As the Obama administration comes into its own, federal prisoners and justice
policy experts alike are hoping he'll resurrect the presidential pardon, returning
it to its intended place as a critical piece of the grand puzzle of the judicial
system.

Pardon's Potential

Pardon was not originally intended as a backdoor exit for the president's convict
friends. According to a recent Congressional Research Service report, the power
to grant clemency was included in the Constitution to make room for individual
cases served badly by the justice system. James Iredell, one of the original
Supreme Court justices, stated in an address, "There may be instances where,
though a man offends against the letter of the law ... peculiar circumstances
in his case may entitle him to mercy."

According to Margaret Colgate Love, who served as US pardon attorney from 1990
to 1997, pardon plays an integral part in the framers' system of checks and
balances.

"The fact is that the federal sentencing scheme assigns a central role
to pardon, if only by default, because it provides no other way to take a second
look at sentences that have become final, or to release a federal offender from
the collateral consequences of conviction," Love writes in her 2007 report,
Reinventing the Presidential Pardon Power. "No legal system should have
to rely on executive clemency to do justice, but ours does."

Metz agrees: Despite her nonviolent-first-offender status, she'll remain in
prison for life unless a commutation or pardon comes to the rescue. Her absurd
sentence is the result of poverty, racism, negligent public defenders and an
ingrained pattern of unjust sentencing practices, she says.

"My lawyer never was on my side to begin with," Metz said. "Had
he been on my side this never would have happened. My story is like a lot of
stories you see, but can't really put a face on. In communities where I'm from
this type of thing happens all the time."

Although in theory, sentencing guidelines mean equal time for equal crimes,
cases like Metz's are not uncommon: multiple life sentences laid down for drug
"conspiracy" charges, sometimes for schemes in which the defendant
played only a peripheral role.

Former Texas restaurateur Sharanda Jones has spent the past ten years in prison
for crack cocaine conspiracy. Police intercepted a phone call in which a small-time-dealing
friend of Sharanda's asked her if she knew anyone who wanted to buy drugs. With
that one short call, Jones was swept up in a massive, high-profile string of
drug raids careening through her community, spearheaded by actor Chuck Norris.
Now her only hope is presidential clemency.

"There is no relief for me coming from the courts," Jones told Truthout.
"At the present time I am working on advocates to help me support my commutation."

Unlike most other components of the checks-and-balances system, the pardon is
ultimately controlled by only one factor: the president's word. According to
the recent CRS report, the president can grant pardons at any time, before or
after a sentence is served - or even before charges have been pressed. He or
she can also grant clemency to a large group. Theoretically, the president could
pardon all prisoners serving time for marijuana possession, or commute the sentences
of all nonviolent drug offenders who have served more than 10 years.

In this line, Abraham Lincoln pardoned all Southern rebels who returned their
allegiance to the union after the Civil War. He also pardoned or commuted the
sentences of a number of union military offenders, such as soldiers sentenced
to death for desertion or sleeping on the job.

Lincoln's pardons serve as an example of another purpose for pardons besides
simply the granting of mercy: They boosted the country's morale and inspired
rebel soldiers to return their loyalty. Lincoln used the pardon as a political
tool.

The president's use of the pardon power can also make policy statements and
demonstrate the administration's priorities.

"Historically, pardon has played a policy role in raising awareness of
shortcomings in the law in the context of a particular case," Love writes.
"Used wisely, the pardon power can reveal flaws in the legal system, influence
attitudes and build consensus for change."

Pardoning prisoners like Aaron, Metz or Jones could cast a sharp light on all
prisoners serving life sentences for nonviolent drug charges, calling into question
the practice as a whole.

The Fall of the Pardon

Throughout most of US history, according to Love, the pardon was used frequently.
Only in recent years has it acquired its shady reputation - a development that
coincided with a marked drop in the use of the power. >From FDR's presidency
until the Reagan administration, the grant rate for pardons was always 30 percent
or higher. In the years since, a "tough on crime" mentality has increasingly
pervaded politics and the public mindset, and the pardon rate has dropped accordingly,
according to Tekla Lewin of Citizens United for the Rehabilitation of Errants.

"Politicians and the media have spent decades hyping crime as the worst
problem society faces, demonizing criminals as utter scum and encouraging an
atmosphere of vengeance on criminals," Lewin told Truthout. "I think
that in part this is deliberate obfuscation on the part of many elites, to distract
people from the really serious problems people face, and that in part being
'tough on crime' has been an easy vote-getter for politicians."

Crime-fighting's "easy vote-getter" potential has a flip side: the
enormous risk of losing votes if one is perceived as being
lenient. Lawmakers are wary of the "Willy Horton effect," so named
for the inmate who committed armed robbery and rape when released on a Massachusetts
weekend furlough program, severely damaging the presidential campaign of Massachusetts
Governor Michael Dukakis.

According to Lewin, the "war on crime" dealt a blow to the concept
of mercy, and thus to the pardon. When vengeance is valued over compassion,
appearing weak on crime is a risk not many politicians are willing to take.

Although there have been a smattering of clemency grants for drug offenders
in recent years, they don't add up to a policy statement disavowing the drug
war - in fact, they may do the opposite, according to Tom Murlowski of the November
Coalition, a nonprofit organization that combats drug war injustice. Murlowski
points to President Clinton, who commuted the sentences of 22 drug offenders
on his last day in office, following up on a handful of previous drug-related
clemency grants.

"There were thousands of cases as deserving, or more so, than the few that
got released, and most of those drug offenders released were those that had
some solid media support behind them - they had virtually all been featured
in mainstream media in some way," Murlowski told Truthout. "Our fear
was that, when these few stories were featured and, ultimately commuted, it
sent the erroneous message that these were isolated cases of drug war injustice,
when the reality was a systemic injustice as a result of fundamentally flawed
policies."

Leading up to Clinton's final days, the November Coalition led a campaign urging
the president to call for a blanket release of nonviolent drug offenders. However,
Murlowski notes, such a move could prove "political suicide" in a
country where "toughness" is still the barometer when it comes to
crime - any crime.

Another little-noted factor has contributed to the dearth of recent pardons:
The Office of the Pardon Attorney has long been underfunded and understaffed.
Clemency and pardon requests go through several steps before they reach the
president - they must be investigated by government agencies, then reviewed
by the pardon attorney, the attorney general and finally the president - and
qualified support personnel at each of these levels is essential. According
to Marc Mauer, executive director of The Sentencing Project, more pardons might
be granted if the department was simply funded adequately.

"There's been a huge backlog under the [Bush] administration, which is
basically a resource issue; not providing sufficient staff to review applications,"
Mauer told Truthout.

Instead of prompting more hires, the backlog has perpetuated a shoddy, negligent
review process, according to former Pardon Attorney Love.

"These cases are not getting fully reviewed," Love told Truthout.
"It seems like the main objective of the current pardon attorney is to
manage the backlog by getting rid of cases as soon as he can; turning them around
at the door. I've heard he's not even getting the pre-sentence report in most
cases."

Compounding the situation, the pardon attorney in office for the past 10 years
was known for discriminatory behavior, and was recently removed from office
following accusations of racism. A report by the department's inspector general
stated that Pardon Attorney Roger Adams described a drug offender requesting
a pardon as "about as honest as you could expect for a Nigerian.... Unfortunately,
that's not very honest."

According to the inspector general's report, "Adams' comments - and his
use of nationality in the decision-making process - were inappropriate."
Considering most long-serving drug offenders are minorities, Adams's behavior
calls into question the handling of the entire pardon evaluation process in
recent years.

"My Time Is Now"

Clemency applicants stress the lack of logic that seems inherent in the pardon
system; the application process is partially just a game of risk. For George
Martorano, the longest-serving nonviolent first offender in federal prison -
and an author, yoga instructor and writing teacher - a six-year pardon wait
ended painfully in December.

"I put in a request with Bush and it languished there for a good long time,"
Martorano told Truthout. "The denial was handed to me on my birthday. Nice
birthday present. I can't see why I didn't get it. If a person like me doesn't
get it, who does?"

However, Martorano and many other previously denied applicants are planning
to begin the process anew, with a president in office who may be more sympathetic
to their cause. Moreover, some drug offenders who felt a Bush-administration
request would be futile are now casting their clemency lot with Obama. Sharanda
Jones, the first-time nonviolent offender netted by the Chuck Norris scheme,
is one of these.

"Several ladies here filed pardons with President Bush," Jones told
Truthout. "All were denied within months. I feel my time is now."

Mauer notes that, should Obama wish to revive the power of the pardon, he'll
need to spend some time laying the groundwork. One essential step: educating
the public.

"He should first make it clear that the pardon power is a longstanding
and important function of the executive, and one that is necessary to provide
justice and remedy any injustices that may have occurred in the past,"
Mauer said.

This "message from the top" is essential when it comes to justice
system issues, according to Mauer: If the president indicates an interest in
revitalizing the pardon, it will likely channel more resources toward the department
and encourage government agencies, the pardon attorney and the attorney general
to produce favorable recommendations.

As the volume of pardons increases, the public's distrust of the pardon will
likely decrease, according to Love, who notes that if the practice is routinely
used to remedy flawed sentences and negate wrongly determined verdicts, its
true intent will become clear.

Mauer also recommends a review of the Office of the Pardon Attorney's resources,
followed by adjustments to speed up the flow of applications and improve transparency.

In the meantime, as the pardon process shuffles on with little accountability
and few overarching principles, the best move for prisoners seeking a pardon
is to get publicity, and lots of it.

"As a rule, it seems, the more famous a case is, the better the chances
of relief," Murlowski said. "I was always struck by how many more
federal drug law violators were worthy of relief after the 2000 commutations,
but didn't have the media exposure that the select few enjoyed."

The case of Amy Ralston, the manager of an LA promotional company who was convicted
on conspiracy charges after her estranged husband was arrested for manufacturing
ecstasy - got enough publicity to put her on Clinton's clemency list. Her story
was chronicled on 60 Minutes, on Court TV and in Glamour magazine.

Ralston sought out publicity and support from influential people. She obtained
letters backing her clemency request from 16 politicians.

"I think Clinton picked my case because there was a lot
of pressure," she told Truthout. "People were coming at him from all
angles, including 60 Minutes."

Ralston's case matches Murlowski's characterization of clemency recipients:
offenders that are so widely publicized that, when granted a pardon or commutation,
they appear to be an exception to the rule; the rare "good prisoner"
stranded among the masses that deserve to be incarcerated.

Dorothy Gaines, whose sentence was also commuted by Clinton, has a similar story.
She describes how her case "caught fire": an avalanche of media attention
sparked a massive public outcry to "free Dorothy Gaines." She was
featured on PBS's Frontline and interviewed on NPR. Her case became one of the
"exceptions."

"I consider myself blessed," Gaines told Truthout. "The day I
was released, they told me that thousands and thousands of applications for
clemency had come in [during the Clinton administration]."

However, even a media spotlight doesn't guarantee a pardon or commutation. Clarence
Aaron, the drug prisoner saddled with three life sentences for introducing two
traffickers, received coverage from Frontline, The San Francisco Chronicle and
even Fox News. His clemency denial came as a brutal surprise.

Ralston tells prisoners seeking clemency to "never give up," especially
since Bush is out of office. President Obama has indicated that he'll push for
a shift from punishment to treatment for drug-related crimes, and his mantras
of "hope" and "change" infuse optimism into prisoners' conversations
about their chances for release.

However, Obama has not made any specific statements about reforming the pardon
process, and so far, it's tough to predict any major systemic changes.

"I like to come back to the fact that there's always hope," Martorano
said. "But the problem with requesting a pardon is you never even know
if you're being considered. My request languished for a good long time. It sat
on somebody's desk for six years, while I was hoping. What is hope when
it's false hope?"